Citation Nr: 1534483
Decision Date: 08/12/15 Archive Date: 08/20/15
DOCKET NO. 08-38 567 ) DATE
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On appeal from the
Department of Veterans Affairs Regional Office in Hartford, Connecticut
THE ISSUES
1. Entitlement to service connection for Waldenstrom macroglobulinemia, to include as due to herbicide exposure.
2. Entitlement to service connection for Type II diabetes mellitus, to include as due to herbicide exposure.
WITNESS AT HEARING ON APPEAL
Appellant
ATTORNEY FOR THE BOARD
L. Stepanick, Associate Counsel
INTRODUCTION
The Veteran served on active duty from August 1967 to January 1970 and from April 1970 to April 1976, with additional service in the Navy Reserve.
This matter comes before the Board of Veterans' Appeals (Board) on appeal from June 2008 and August 2012 rating decisions by the Department of Veterans Affairs (VA) Regional Office (RO).
In September 2008, the Veteran and his spouse testified before a Decision Review Officer (DRO). In February 2009, the Veteran testified at a Video Conference hearing before the undersigned Veterans Law Judge (VLJ). Transcripts of the hearings are of record.
In February 2010 and November 2014, the Board remanded the issue of entitlement to service connection for Waldenstrom macroglobulinemia for further evidentiary development.
In April 2015, the Veteran submitted additional evidence, without a waiver of Agency of Original Jurisdiction (AOJ) consideration, that he asserted demonstrated that he served as a duty driver while stationed in Guam. However, that submission is largely duplicative or cumulative of evidence already of record. Thus, the Board finds that remand for consideration of the April 2015 evidence is not warranted. 38 C.F.R. § 20.1304.
The Board notes that a letter was sent to the Veteran in September 2014 requesting clarification of his current representation. In October 2014, he responded indicating that he wished to proceed with his appeal pro se.
FINDINGS OF FACT
1. The Veteran did not serve in the Republic of Vietnam or Korea during the Vietnam Era, and there is no competent and credible evidence establishing that he was exposed to herbicides during service.
2. Waldenstrom macroglobulinemia was not shown in service or for many years thereafter, and there is no probative evidence suggesting the condition is related to service.
3. Type II diabetes mellitus was not shown in service or for many years thereafter, and there is no probative evidence suggesting the condition is related to service.
CONCLUSIONS OF LAW
1. The requirements for establishing service connection for Waldenstrom macroglobulinemia have not been met. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 1131, 1137, 5107 (West 2014); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2014).
2. The requirements for establishing service connection for Type II diabetes mellitus have not been met. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 1131, 1137, 5107 (West 2014); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2014).
REASONS AND BASES FOR FINDINGS AND CONCLUSIONS
I. Duties to Notify and Assist
Under the Veterans Claims Assistance Act of 2000 (VCAA) VA has a duty to notify and assist a claimant in the development of a claim. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, and 5126 (West 2014); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, and 3.326(a) (2014).
The notice requirements of the VCAA require VA to notify a claimant of what information or evidence is necessary to substantiate the claim; what subset of the necessary information or evidence, if any, the claimant is to provide; and what subset of the necessary information or evidence, if any, the VA will attempt to obtain. 38 C.F.R. § 3.159(b) (2014). Compliant VCAA notice was provided in November 2007 and February 2012.
In addition, the Board finds that the duty to assist a claimant has been satisfied. The Veteran's service treatment and personnel records are on file, as are various post-service medical records.
The Board notes that the Veteran has not been afforded a VA examination regarding either issue on appeal, and that no medical opinions have otherwise been obtained. However, the evidence does not suggest, and the Veteran does not contend, that his diabetes or Waldenstrom macroglobulinemia manifested during service or within the year following discharge, or that they are related to service for reasons other than claimed herbicide exposure in the case of diabetes, or to herbicide, radiation, or asbestos exposure in the case of Waldenstrom macroglobulinemia. Moreover, there is no competent and credible evidence that the Veteran was exposed to herbicides or ionizing radiation as alleged, and there is no competent evidence suggesting his diabetes and Waldenstrom macroglobulinemia are otherwise etiologically related to service. Thus, the Board finds that obtaining VA examinations and opinions on these issues is not required. See 38 C.F.R. § 3.159(c)(4) (2013); see also McLendon v. Nicholson, 20 Vet. App. 79, 81 (2006).
The Veteran was also afforded hearings before a DRO and a VLJ, which he requested in connection with his claim for service connection for Waldenstrom macroglobulinemia. In Bryant v. Shinseki, 23 Vet. App. 488 (2010), the United States Court of Appeals for Veterans Claims held that 38 C.F.R. § 3.103(c)(2) requires that the officers who chair a hearing explain the issues and suggest the submission of evidence that may have been overlooked. Here, the DRO and VLJ identified the issue to the Veteran, who testified as to the onset of the cancer and his alleged exposure to herbicides. The Veteran has not asserted that VA failed to comply with 38 C.F.R. § 3.103(c)(2), nor has he identified any prejudice in the conduct of the hearings. The hearings focused on the elements necessary to substantiate the claim, and the Veteran provided testimony relevant to those elements. As such, the Board finds that no further action pursuant to Bryant is necessary, and the Veteran is not prejudiced by a decision at this time.
Finally, the Board notes that the actions requested in the prior remands have been undertaken. A request was sent to the Compensation and Pension Service for review of the Department of Defense's inventory of herbicide operations and to determine whether herbicides were used on Guam, and the Veteran was sent correspondence asking him to clarify the dates during which the USS Proteus was stationed in Guam, to which he did not respond. In August 2012, the U.S. Army and Joint Services Records Research Center (JSRRC) Coordinator issued a memorandum stating that the Veteran had not provided sufficient information to submit a research request to JSRRC. Additionally, an attempt was made to obtain the Veteran's Social Security Administration (SSA) disability records. After VA received notification that the SSA records had been destroyed, the Veteran was notified that it was unable to obtain them. Based on the foregoing actions, the Board finds that there has been substantial compliance with the prior remand instructions and no further action is necessary. See D'Aries v. Peake, 22 Vet. App. 97 (2008) (holding that only substantial, and not strict, compliance with the terms of a Board remand is required pursuant to Stegall v. West, 11 Vet. App. 268 (1998)).
After a careful review of the file, the Board finds that all necessary development has been accomplished, and therefore appellate review may proceed without prejudice to the Veteran. See Bernard v. Brown, 4 Vet. App. 384 (1993).
II. Analysis
Service connection may be established for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303. Evidence of continuity of symptomatology from the time of service until the present is required where the chronicity of a chronic condition manifested during service either has not been established or might reasonably be questioned. 38 C.F.R. § 3.303(b); see also Walker v. Shinseki, 708 F.3d 1331, 1340 (Fed.Cir.2013) (holding that only conditions listed as chronic diseases in 38 C.F.R. § 3.309(a) may be considered for service connection under 38 C.F.R. § 3.303(b)). Regulations also provide that service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disability was incurred in service. 38 C.F.R. § 3.303(d).
Generally, in order to prove service connection, there must be competent, credible evidence of (1) a current disability, (2) in-service incurrence or aggravation of an injury or disease, and (3) a nexus, or link, between the current disability and the in-service disease or injury. See, e.g., Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Pond v. West, 12 Vet. App. 341 (1999).
Moreover, where a veteran served continuously for 90 days or more during a period of war, or during peacetime service after December 31, 1946, and diabetes mellitus or cancer becomes manifest to a degree of 10 percent within one year from date of termination of such service, such disease shall be presumed to have been incurred in service, even though there is no evidence of such disease during the period of service. This presumption is rebuttable by affirmative evidence to the contrary. 38 U.S.C.A. §§ 1101, 1112, 1113, 1137 (West 2014); 38 C.F.R. §§ 3.307, 3.309 (2014).
Veterans who, during active military, naval, or air service, served in the Republic of Vietnam from February 28, 1961, to May 7, 1975, shall be presumed to have been exposed to an herbicide agent, including Agent Orange, unless there is affirmative evidence to establish that the Veteran was not exposed to any such agent during that service. 38 C.F.R. § 3.307(a)(6)(iii) (2014). Section 3.307(d)(6) provides that the term "herbicide agent" means a chemical in an herbicide used in support of the United States and allied military operations in the Republic of Vietnam during the period beginning on January 9, 1962, and ending on May 7, 1975, specifically: 2, 4-D; 2,4,5-T and its contaminant TCDD; cacodylic acid; and picloram. 38 C.F.R. § 3.307(d)(6)(i). Service in the Republic of Vietnam includes service in the waters offshore and service in other locations if the conditions of service involved duty or visitation in the Republic of Vietnam. Id. Additionally, Section 3.307(a)(6)(iv) extends the presumption to Veterans who served between April 1, 1968, and August 31,1971, in a unit that, as determined by the Department of Defense (DOD), operated in or near the Korean demilitarized zone (DMZ) in an area in which herbicides are known to have been applied during that period. See 38 C.F.R. § 3.307(a)(6)(iv).
The Board has reviewed all the evidence in the record. Although the Board has an obligation to provide adequate reasons and bases supporting this decision, there is no requirement that the evidence submitted by the appellant or obtained on his behalf be discussed in detail. Rather, the Board's analysis below will focus specifically on what evidence is needed to substantiate the claim and what the evidence in the claims file shows, or fails to show, with respect to the claim. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) and Timberlake v. Gober, 14 Vet. App. 122, 128-30 (2000).
Except as otherwise provided by law, a claimant has the responsibility to present and support a claim for benefits under the laws administered by VA. VA shall consider all information and medical and lay evidence of record. Where there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall give the benefit of the doubt to the claimant. 38 U.S.C.A. § 5107; 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990).
As an initial matter, the Board finds that the evidence of record confirms the Veteran has been diagnosed with Type II diabetes mellitus and Waldenstrom macroglobulinemia. Treatment records reflect that the Veteran was diagnosed with Waldenstrom macroglobulinemia in 2002 or 2003, and with diabetes mellitus thereafter. With current disabilities conceded, the issue before the Board becomes whether those conditions are the result of his military service.
The Veteran primarily asserts that his diagnoses of diabetes and Waldenstrom macroglobulinemia are the result of exposure to an herbicide agent in Guam during the Vietnam Era. Thus, as he has not asserted, and as the record does not reflect, that he served in the Republic of Vietnam or in Korea during the Vietnam Era, the presumption of herbicide exposure is inapplicable. 38 U.S.C.A. § 1116; 38 C.F.R. §§ 3.307(a)(6)(iii)-(iv); 3.309(e). However, the fact that a Veteran is not entitled to the regulatory presumption of service connection based on herbicide exposure does not preclude an evaluation as to whether he is entitled to service connection on a direct basis or entitled to presumptive service connection for a chronic disease. See Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994).
The Veteran has indicated that he served as a duty driver in Guam during the Vietnam Era, which involved transporting service members to Andersen Air Force Base (AFB) and other locations on the island. He has also described sitting on the ground near playing fields in several locations in Guam while waiting for the sports teams he transported. During his September 2008 DRO hearing, he testified that he did not know that herbicide spraying was occurring in Guam and had not seen any barrels identified as containing Agent Orange, but that he had articles documenting use of herbicides at Andersen AFB. He reported spending approximately two years in Guam, from 1970 to 1972. During his February 2009 Board hearing, the Veteran reiterated that he believed he was exposed to herbicides as a result of his frequent trips to Andersen AFB. He indicated he did not witness any spraying activity, but stated he saw barrels sitting along the runway. In June 2011, the Veteran was asked to provide additional information regarding his alleged herbicide exposure, including specific dates of exposure limited to 60 day time periods. He did not respond. On a January 2012 Agent Orange worksheet, the Veteran reported exposure to Agent Orange in Guam from June 1970 to December 1971, and stated he was in a recently sprayed area near the Andersen AFB airstrip. In April 2012, he submitted correspondence stating that he drove trucks to Andersen AFB and parked next to the airstrip, and that he and the other truck drivers sat on the ground and "breathed the same windy air."
In addition to his statements, the Veteran has submitted a 2005 Board decision in which the Board granted a Veteran service connection for diabetes based on service in Guam. In that decision, the Board considered articles discussing herbicide use at Andersen AFB and a U.S. Environmental Protection Agency (EPA) listing that included Andersen AFB as a toxic site with dioxin-contaminated soil. The Veteran has also submitted article excerpts and various other documents, including an article published by the Agency for Toxic Substances & Disease Registry that analyzes the health hazards posed by various environmental contaminants at Andersen AFB, a map of toxic chemical dump sites in Guam, an article noting that soldiers stationed in Guam who handled Agent Orange have become ill, that symptoms of TCDD poisoning are apparent in the general population of the island, and that high levels of TCDD have been measured in some areas of Andersen AFB, an article discussing the carcinogenicity of TCDD, an article asserting that "tactical herbicides" is a misnomer, and a document that compiles excerpts from various sources, including a book by Roger P. Fox entitled Air Base Defense in the Republic of Vietnam, 1961 - 1973, a partial copy of the 2005 Board decision previously referenced, excerpts from the declassified Vietnam Era DOD document entitled "Project CHECO Southeast Asia Report: Base Defense in Thailand," and what appear to be excerpts from a research paper by Kurt Priessman entitled "Herbicide Use in Thailand - The Relationship to the Rules of Engagement (ROE) and Use in Vietnam and Laos."
In an attempt to verify the Veteran's claims regarding herbicide use in Guam, VA submitted an inquiry to the Compensation and Pension Service. In October 2011, the Appeals Management Center (AMC) issued a memorandum finding there was not enough information to corroborate the Veteran's reported exposure. It noted that it had contacted Compensation and Pension Service regarding the Veteran's assertion of being exposed to Agent Orange or other herbicides while serving in Guam, but that negative results were received. Specifically, the Compensation and Pension Service response stated that the DOD information provided to VA does not contain any herbicide test, storage, or use sites on Guam. The response also specifically referenced the 2005 Board decision the Veteran cited in support of his assertion that he was exposed to herbicides, and noted that the statements in that decision that referred to the presence of dioxins in Guam were unsubstantiated. It acknowledged that the decision cited articles reporting that Andersen AFB was identified as a toxic site by the EPA in the 1990s, but stated that "VA cannot locate any EPA report, or any other competent and credible expert report, that identifies dioxin as one of the potential significant toxins on Guam." The response went on to state that the Compensation and Pension Service contacted the Guam Program Manager of the Pacific Islands Office of the EPA to ask if Agent Orange or other tactical herbicides had ever been used on Guam, and that the Program Manager stated he had never seen any reports identifying the presence of Agent Orange anywhere on Guam. The Board notes that the Compensation and Pension Service's response employed the general term "dioxin," when describing what had not been identified as a potential significant toxin in that location, but finds that, when read in the context of the entire response, the term appears to have been used to refer specifically to A or, even more specifically, to TCDD, the type of dioxin created as a byproduct of herbicide production. See 38 C.F.R. § 3.307(a)(6)(i); see also U.S. Department of Veterans Affairs, Public Health, Facts About Herbicides, http://www.publichealth.va.gov/exposures/agentorange/basics.asp (last visited Aug. 7, 2015) (discussing the dioxin TCDD and providing a link to an ATSDR document that describes chlorinated dibenzo-p-dioxins (CDDs) generally).
Following review of the evidence of record, the Board finds that the most probative evidence indicates that herbicide agents were not used, tested, stored, or disposed of in Guam.
The Board notes that, by law, Board decisions are nonprecedential and are only binding as to the case decided. Prior decisions in other appeals may be considered in a case to the extent that they reasonably relate to the case, but each case presented to the Board will be decided on the basis of the individual facts of the case in light of applicable procedure and substantive law. See 38 C.F.R. § 20.1303 (2014). The Board notes that there is no mention in the 2005 Board decision of any review of DOD documents concerning the use of Agent Orange on Guam. As the evidence of record in the case presently before the Board includes a review of DOD documents, the facts of this case are readily distinguishable from the facts considered in the 2005 Board decision.
The Board acknowledges and has reviewed the other documents, articles, and excerpts of articles submitted by the Veteran, including the study that evaluates soil and groundwater contaminants identified at Andersen AFB and the article excerpt that discusses symptoms experienced by service members who allegedly handled Agent Orange and symptoms of dioxin poisoning noted in the island population. However, regarding the latter, review of the full version of the article, including the footnotes, reveals that the cited source of the information regarding use of Agent Orange on Guam is a June 17, 2003 Pacific Daily News article entitled "Sick vets report on Agent Orange." That source article consists primarily of statements from Veterans indicating they believed Agent Orange was used on the island and that they came into direct contact with it. However, it contains no information that otherwise confirms the presence of Agent Orange or any other herbicide agent on Guam. Regarding the soil and groundwater study, although that document discusses dioxins identified in some soil samples at various locations on the island, it does not state that those dioxins were TCDD-the specific type of dioxin identified in 38 C.F.R. § 3.307(a)(6)(i) as an herbicide agent.
Although the most persuasive evidence of record is against finding that herbicide agents were used in Guam, the Board acknowledges that the Veteran submitted another excerpt of an EPA document that includes TCDD in a list of contaminants found in the soil at Urunao, Guam, a dumpsite located near Andersen AFB. The Board notes that the document contains no indication of the origin date of the dioxin identified. However, even assuming, for the sake of argument, that presence of an herbicide agent, as defined in 38 C.F.R. § 3.307(a)(6)(i), in Guam at the time of the Veteran's service was established, the Board finds that the Veteran has not in turn established that he was exposed to such. As is true of all of the locations in Guam-which included landfills and waste piles, an Andersen AFB MARBO Annex laundry facility, a power substation, a quarry, drum and chemical storage areas, and a fire training area-at which dioxins of any kind were identified in the documents the Veteran has submitted, he has not reported visiting the Urunao dumpsite.
The Board acknowledges that the Veteran believes he was exposed to herbicides during his service in Guam. A layperson is competent to report on matters of which he has personal knowledge. See Layno v. Brown, 6 Vet. App. 465, 470 (1994) (a Veteran is competent to report on that of which he or she has personal knowledge); see also Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009). Here, however, there is no indication in the record that the Veteran possesses the necessary expertise to identify chemical compounds such that his observation is sufficient to establish the presence of herbicide agents in Guam. As already discussed, the Board finds that the preponderance of the competent evidence of record is against finding that tactical herbicides were tested, stored, or used in Guam, and the Veteran's statements of exposure, standing alone, are insufficient to establish his actual exposure to an herbicide agent. Moreover, while the Veteran has alleged direct exposure to herbicides, he has only described his general presence and activities in Guam. Although he has characterized his duties as a driver, including his trips to Andersen AFB and his activities while there, as establishing his direct exposure to herbicides, they essentially amount to an argument that his presence in Guam and at Andersen AFB, alone, demonstrates his exposure to herbicides, invoking a presumption not contemplated by current law.
In short, there remains no official DOD-documented indication of tactical herbicide use in Guam, nor has Guam been added to the list of locations for which exposure to such herbicide agents may be presumed. The 2005 nonprecedential Board decision submitted by the Veteran did not appear to take into consideration the competent DOD evidence listing sites outside of Vietnam where Agent Orange or other tactical herbicides were used, stored, or tested. Thus, it is not dispositive as to the use of Agent Orange in Guam. See generally, Reonal v. Brown, 5 Vet. App. 458, 461 (1993) (holding that "an opinion based upon an inaccurate factual premise has no probative value"); see also Madden v. Gober, 123 F.3d 1477, 1481 (Fed. Cir. 1997) (the Board is entitled to discount the weight, credibility, and probity of evidence in light of its own inherent characteristics and its relationship to other items of evidence). The other evidence submitted by the Veteran consists of articles supported only by lay statements previously made by other Veterans, articles discussing herbicide use in locations other than Guam, or documents identifying dioxins but not in the areas of Andersen AFB or Guam that the Veteran reported visiting. Accordingly, the Board finds that the Veteran was not exposed to herbicides during service.
Turning to other theories of entitlement, the evidence does not show, and the Veteran does not contend, that his Waldenstrom macroglobulinemia and his diabetes arose during service or that his diabetes arose within one year of discharge from service. The Veteran's service treatment records reveal no diagnoses of diabetes or Waldenstrom macroglobulinemia, or findings of elevated blood sugar levels. Furthermore, post service treatment records indicate that he was diagnosed with both conditions on or after 2002, over 25 years after separation from service. The Board notes that the preponderance of the evidence is therefore also against a claim for service connection for diabetes on a presumptive basis as a chronic disease. 38 C.F.R. § 3.309(a).
Finally, although there is no evidence of record suggesting, and the Veteran has not asserted, that his diabetes is related to service on a basis other than alleged herbicide exposure, the Veteran has previously asserted that his Waldenstrom macroglobulinemia is related to in-service exposure to radiation or asbestos. Although he has not advanced those theories recently, the Board has nevertheless considered them, and finds that service connection is also not warranted on those bases.
Although 38 C.F.R. § 3.309(d)(2) provides that certain cancers, including lymphomas such as Waldenstrom macroglobulinemia, may be presumptively service connected if they become manifested within a radiation-exposed Veteran, the evidence of record does not reflect that the Veteran is a "radiation-exposed Veteran" as defined in 38 C.F.R. § 3.309(d)(3)(ii). Moreover, a September 2005 letter from the Naval Dosimetry Center indicated that there were no reports of occupational exposure to ionizing radiation pertaining to the Veteran, and the information contained in his service records does not suggest that he was exposed to radiation that went unreported. Accordingly, service connection under the provisions of either 38 C.F.R. §§ 3.309(d) or 38 C.F.R. § 3.311 is not warranted.
With respect to the claim of exposure to asbestos, even assuming that the Veteran was exposed as he has asserted in the past, there is no competent evidence of record even suggesting that his currently diagnosed Waldenstrom macroglobulinemia is related to such previous exposure. Although the Veteran may believe that his Waldenstrom macroglobulinemia can be attributed to one or more substances to which he asserts he was exposed during service, there is no indication that he has the requisite training and expertise to be considered competent to provide opinions on those questions. See Jandreau v. Nicholson, 492 F. 3d 1372 (Fed. Cir. 2007).
In summary, the Board has reviewed the evidence of record, as well as the pertinent law and regulations, but finds that the preponderance of the evidence is against the Veteran's claims. Thus, service connection for Waldenstrom macroglobulinemia and Type II diabetes mellitus is denied.
In reaching these conclusions the Board has considered the applicability of the benefit of the doubt doctrine. However, as the preponderance of the evidence is against the Veteran's claims, that doctrine is not applicable here. See 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102; Gilbert, 1 Vet. App. at 55-57.
ORDER
Service connection for Waldenstrom macroglobulinemia is denied.
Service connection for Type II diabetes mellitus is denied.
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K. A. BANFIELD
Veterans Law Judge, Board of Veterans' Appeals
Department of Veterans Affairs